Date: 20000926
Docket: IMM-1758-99
BETWEEN :
LI, MAN WAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J. :
[1] The applicant seeks a judicial review of a decision of a visa officer dated March 4, 1999, wherein he refused the applicant's application for a student authorization to study in Canada on the ground that she was not a visitor as defined by the Immigration Act1, ("the Act") and the Immigration Regulations ("the Regulations").
1. Facts
[2] The applicant, a citizen of Hong Kong, applied for a student authorization on January 25, 1999. On March 4, 1999, the visa officer refused her application as she was not satisfied that the applicant was seeking entry to Canada for temporary purposes but that she intended to remain in Canada with her parents. The applicant had already applied for permanent residence in Manila in 1997 but her application was denied.
[3] In her letter of refusal, the visa officer wrote that "you advised me during your interview that your application for permanent residence was refused in Manila in 1997 and your statement to me that it is your intention to remain in Canada with your parents".
2. The Applicant's Submissions
[4] The applicant submits that the visa officer breached the duty of fairness when she denied her visa application. The visa officer did not fairly apply the guidelines in the matter which provide that "in the case of a foreign student, the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant". The guidelines also indicate that: "visa officers are required to be guided by the knowledge that foreign students educated in Canada provide needed links for trade and investment, and that they are an excellent source of future skilled immigrants. It is not uncommon for highly qualified students, particularly those at the graduate level, to work for a year after completing their course of studies and apply for permanent residence status through visa offices in the U.S.A. CIC views this development as a positive outcome".
3. Analysis
[5] Subsection 9(1.2) of the Act provides that: "[a] person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant". On the other hand, as mentioned earlier, the guidelines state that: "in the case of a foreign student, the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant". Thus, it would appear that the guidelines impose a requirement that is not present in the Act itself. The Act takes precedence and it is trite law that guidelines are not mandatory.
[6] In light of the facts of this case, it appears to me that the conclusion of the visa officer is reasonable. The applicant has no prospect of employment in Hong Kong, she has a role in the operation of her father's jewellery business in Canada, she has been residing in Canada on and off for the previous two years. Furthermore, she specifically stated that she wanted to remain in Canada with her parents.
[7] Consequently, this application should be dismissed.
[8] There is no question of general importance to be certified.
OTTAWA, Ontario
September 26, 2000
Judge
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